Supreme Court Hears Privacy Arguments Over Gay Marriage Petition
Opponents Push for Anonymity in Signing a Washington State Ballot
By Joan Biskupic
April 29, 2010
Supreme Court justices voiced skepticism, and even some outrage, Wednesday over arguments that people who signed a petition for a Washington state ballot measure against gay rights should be able to keep their names private out of a general fear of harassment.
Speaking to the lawyer challenging a state open-records law, Justice Antonin Scalia said, "The people of Washington evidently think that this is not too much of an imposition upon people's courage — to stand up and sign something and be willing to stand behind it."
Scalia was most vigorous in protesting arguments that Washington residents who signed a petition for a referendum against gay legal rights had a right to privacy in their political speech.
"What about just wanting to know their names so you can criticize them?" said Scalia, who has voted against gay rights and never shrunk from his positions. "Is that such a bad thing in a democracy?"
Wednesday's case, marking the last arguments for the 2009-10 term, pit the state's interest in open government against the privacy rights of the petition signers.
"No person should suffer harassment for participating in our political system," said James Bopp, representing organizers of the 2009 petition drive called Protect Marriage Washington. They had been trying to overturn a state law that enhanced the legal rights of domestic partners.
Petition signers, known only as John Does, say they do not want their names revealed because they fear some of the retaliation that backers of California's Proposition 8 say they experienced, including harassment at work and vandalism at their homes. California voters approved that measure against same-sex marriage in 2008. In the Washington case, the U.S. Court of Appeals for the 9th Circuit rejected the petition signers' broad challenge to the state open-records law. If the signers lose their appeal of that decision, several justices noted, they still can show that in their situation they have specific facts and grounds to fear harassment if their names are released.
The more liberal justices, including Sonia Sotomayor, appeared poised, with Scalia, to reject the broad-based challenge. Sotomayor questioned whether arguments against public disclosure of names could extend beyond the context of ballot initiatives and possibly hide important government operations from the public.
Justice Samuel Alito voiced the most sympathy for the challengers' case. He worried about people who might be "dissuaded from signing because they fear retaliation."
Alito asked Washington Attorney General Robert McKenna, defending the open-records law, whether a state could require phone numbers, as well as addresses, to be made public, or whether someone's religion could be recorded with petition signatures. McKenna said yes on phone numbers but no on religion.
Justice John Paul Stevens, who will retire at the end of the term and was hearing his last case, briefly questioned Bopp. As has been Stevens' usual practice, he waited until most of his colleagues had asked their questions.
Stevens' query pointed out the value of the petition names to the public debate: "Would it be legitimate public interest to say, 'I would like to know who signed … because I would like to try to persuade them that their views should be modified?' "
Bopp protested that any value added to the public debate by release of the names would be "marginal."
Though Wednesday presented the last set of oral arguments for the term, it was not the last day on the bench for the justices. Over the next two months, Stevens and the others will return at least weekly to issue opinions, including in the case of John Doe No. 1 v. Reed.
Opponents Push for Anonymity in Signing a Washington State Ballot
By Joan Biskupic
April 29, 2010
Supreme Court justices voiced skepticism, and even some outrage, Wednesday over arguments that people who signed a petition for a Washington state ballot measure against gay rights should be able to keep their names private out of a general fear of harassment.
Speaking to the lawyer challenging a state open-records law, Justice Antonin Scalia said, "The people of Washington evidently think that this is not too much of an imposition upon people's courage — to stand up and sign something and be willing to stand behind it."
Scalia was most vigorous in protesting arguments that Washington residents who signed a petition for a referendum against gay legal rights had a right to privacy in their political speech.
"What about just wanting to know their names so you can criticize them?" said Scalia, who has voted against gay rights and never shrunk from his positions. "Is that such a bad thing in a democracy?"
Wednesday's case, marking the last arguments for the 2009-10 term, pit the state's interest in open government against the privacy rights of the petition signers.
"No person should suffer harassment for participating in our political system," said James Bopp, representing organizers of the 2009 petition drive called Protect Marriage Washington. They had been trying to overturn a state law that enhanced the legal rights of domestic partners.
Petition signers, known only as John Does, say they do not want their names revealed because they fear some of the retaliation that backers of California's Proposition 8 say they experienced, including harassment at work and vandalism at their homes. California voters approved that measure against same-sex marriage in 2008. In the Washington case, the U.S. Court of Appeals for the 9th Circuit rejected the petition signers' broad challenge to the state open-records law. If the signers lose their appeal of that decision, several justices noted, they still can show that in their situation they have specific facts and grounds to fear harassment if their names are released.
The more liberal justices, including Sonia Sotomayor, appeared poised, with Scalia, to reject the broad-based challenge. Sotomayor questioned whether arguments against public disclosure of names could extend beyond the context of ballot initiatives and possibly hide important government operations from the public.
Justice Samuel Alito voiced the most sympathy for the challengers' case. He worried about people who might be "dissuaded from signing because they fear retaliation."
Alito asked Washington Attorney General Robert McKenna, defending the open-records law, whether a state could require phone numbers, as well as addresses, to be made public, or whether someone's religion could be recorded with petition signatures. McKenna said yes on phone numbers but no on religion.
Justice John Paul Stevens, who will retire at the end of the term and was hearing his last case, briefly questioned Bopp. As has been Stevens' usual practice, he waited until most of his colleagues had asked their questions.
Stevens' query pointed out the value of the petition names to the public debate: "Would it be legitimate public interest to say, 'I would like to know who signed … because I would like to try to persuade them that their views should be modified?' "
Bopp protested that any value added to the public debate by release of the names would be "marginal."
Though Wednesday presented the last set of oral arguments for the term, it was not the last day on the bench for the justices. Over the next two months, Stevens and the others will return at least weekly to issue opinions, including in the case of John Doe No. 1 v. Reed.
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"Fear Eats the Soul"
"Fear Eats the Soul"
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